IP Justice Comment on Request to ICANN from Red Cross & Olympic Committee to Ban Others’ Use of Words in Domain Names

RE: Red Cross & International Olympic Committee Request to Ban Others’ Use of Words in Domain Names That They Want for Themselves

Today I write to express my personal disappointment with the way ICANN has mis-handled this request for special rights to prohibit the use of certain words in domain names which are desired by politically powerful, but ultimately arbitrary, interests.

Unfortunately, this case represents another clear example of ICANN departing from its own established policies and stated principles of bottom-up governance to demonstrate that it is not quite ready to be a legitimate global governance institution that can be trusted to manage the security and stability of the domain name system in the public interest. The Board/Staff’s imposition of top-down policy that flies directly in the face of the policy that came from the GNSO’s bottom-up process, and this attempt to manufacture consent to that top-down policy via this sham of an abbreviated comment period will not go unnoticed by ICANN’s critics for years to come.

Just because the Red Cross (RC) is known for its aggressive fundraising activities at times of personal tragedy and the International Olympic Committee (IOC) is a popular sports licensing business does not mean these interests are legally entitled to such broad and sweeping privileges to block other legitimate uses of common words. Legal academics contend that certain international treaties are mis-interpreted by the RC and IOC to convince ICANN to grant them even greater rights in domain names than what the law actually provides. But ICANN claims there is no time to listen to legal experts, given the last minute nature of this request from RC and IOC.

Nor has the community ever reached consensus to grant these special privileges, indeed many voices in the ICANN community continue to object to this attempt to steam-roll policy from the top-down to achieve political expedience. The concerns expressed by the Non-Commercial Users Constituency (NCUC) and members of the At-Large community throughout this discussion have been entirely ignored in this steam-roll effort to manufacture consent to what has already been decided in a behind-the-scenes top-down manner.

As someone who has spent the better part of a decade trying to mobilize global civil society to engage in ICANN policymaking, I can say with great experience that cases like this, where ICANN circumvents legitimate process to favor special interests, are often the reason provided by public interest organizations to explain why they are not willing to invest their energy in participating in the so-called “bottom-up” policy development at ICANN.

A more appropriate starting point for this IOC/RC request – and threshold question in any serious policy development forum – would be for the IOC and RC to explain why existing protections in new gtld policy are insufficient to protect their interests. Yet no case has attempted to be made, nor has ICANN’s Board/Staff, Governmental Advisory Council (GAC), or business communities asked this threshold question of IOC and RC, who are requesting unprecedented rights based on shaky legal claims.

ICANN’s mis-handling of this IOC/RC request will haunt the organization for years to come. The Governmental Advisory Council (GAC) has further relinquished its responsibility to protect the public interest, instead acting merely as a tool for select intellectual property interests without regard for other legitimate interests. The Board/Staff have shown they are willing to “make it up as they go along” in order to please the politically powerful, without regard for the dangerous precedent set for the organization by such arbitrary favoritism.